Ian C. Wallace

Following dismissal of a motion to amend the statement of claim, the court determined costs.

The successful party sought partial indemnity costs totalling $14,420.17 for preparation, cross‑examination attendance, and the motion hearing.

The opposing party argued the amount was excessive given the simplicity of the motion and the use of two counsel.

Applying s. 131(1) of the Courts of Justice Act and the factors under Rule 57.01(1), the court held that the requested amount was fair and reasonable given the complexity arising from the long history of the 22‑year litigation and the volume of material involved.

Costs of $14,420.17 were awarded with 120 days permitted for payment.

The moving party, Donald Bartlett Jr., sought leave to appeal an interlocutory order that dismissed his motion to amend his statement of defence and withdraw admissions made in 1990 regarding a guarantee.

The Divisional Court applied the test under Rule 62.02(4)(b) of the Rules of Civil Procedure.

While the court found good reason to doubt the correctness of the motion judge's findings on two of the three elements for withdrawing an admission, it found no reason to doubt the finding on the second element (inadvertence or wrong instructions).

Furthermore, the court held that the matter did not involve issues of public importance.

The motion for leave to appeal was dismissed with costs fixed at $7,000.

The defendant sought leave to amend a statement of defence to withdraw admissions made more than two decades earlier acknowledging the validity of a personal guarantee given in connection with a corporate loan.

The proposed amendment would allow the defendant to assert defences of undue influence, lack of proper independent legal advice, and vulnerability.

The court held that the motion was governed by rule 51.05 of the Rules of Civil Procedure because the amendment effectively sought withdrawal of admissions.

The moving party failed to establish that the amendment raised a triable issue, that the original admissions were inadvertent or based on wrong instructions, or that the withdrawal would not cause prejudice.

Allowing the amendment would also constitute an abuse of process because the defendant had relied on the validity of the guarantee in prior litigation and sworn evidence.

The appellant appealed an order declaring its registered lien against the respondent's equipment invalid.

The respondent had leased equipment to a related company of the appellant under an agreement that expressly prohibited the creation of any liens without prior written consent.

The appellant, knowing of this prohibition, performed work on the equipment and registered a lien under the Repair and Storage Liens Act.

The Court of Appeal dismissed the appeal, finding that the appellant knew of the prohibition, the respondent did not consent to the lien, and the contractual prohibition applied to all types of liens, including those under the Act.